Interesting EAT decision strengthens union members right to representation

A recent Employment Tribunal case raises some important implications for employers initiating disciplinary action, which may help with Napo discussions on facility time.

The case, Talon Engineering Ltd v Smith, sets a precedent after the Employment Appeals Tribunal upheld the original ET decision that Ms Smith had been unfairly dismissed because the employer refused to postpone her disciplinary hearing until such time as her chosen union rep could be accompany her.

Ms Smith had been suspended and given a date for a disciplinary hearing, which she could not attend due to sickness. The employer rescheduled, but her union rep was away on holiday for the date given. They refused to delay proceedings and, when Ms Smith refused to attend without him, dismissed her in her absence.

The employer upheld this decision on appeal and Mrs Smith claimed unfair dismissal in an employment tribunal.

The employment tribunal held that the failure to postpone the disciplinary hearing to enable the trade union representative to accompany Mrs Smith made the dismissal unfair, although they did reduce her compensation for contributory fault.

The EAT rejected the employer’s appeal, supporting the Tribunal finding that it was unreasonable not to postpone the hearing and, given this, that Ms Smith was not at fault for refusing to attend and it was unreasonable to require her to do so. Overall, the EAT approved the employment tribunal’s decision that it was a “gross overreaction” to dismiss Mrs Smith for the emails, given her long and unblemished service and the short further postponement to the disciplinary hearing that was needed.

This raises implications for employers generally, showing that holding a disciplinary hearing in an employee’s absence should be a last resort e.g. if the employee has persistently failed to attend scheduled hearings for no good reason.

For Napo. it strengthens our case for adequate facility time for reps. There are currently problems in both the NPS and some CRCs in reaching agreement on facility time and Napo has stressed that it is very much in the employers’ interest to ensure that proper agreements and provisions are in place. If reps are not available when members need support it will tie them up in endless delays as they will need to be very wary of proceeding against members without representation.

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